' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- Both these applications under section 561-A, Cr.P.C. Arise out of Reference No,1 of 2002, and therefore, they have been heard together and are disposed of by this single consolidated order.
2. The relevant facts are that on 31-12-2001, Chairman, National Accountability Bureau (hereinafter referred to as NAB) sent a reference in the Accountability Court No,IV, Sindh at Karachi, under section 18(g) read with section 24(b) of the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as NAB Ordinance) which reads as follows:-- "Accountability Reference No, of 2001 State versus
(1) Muhammad Hanif son of Abdul Ghaffar, resident of A-13/1, West Street, Phase-1, D.H.A., Karachi.
(2) Muhammad Rafiq alias Rafiq Ahmed Qadir, son of Abdul Qadir (under NAB custody since 6-10- 2001).
(3) Abdul Hussain son of Abdul Habib (granted pardon on 6-11-2001) (approver/under judicial custody) (not being sent up for trial).
Both partners of Messrs Ghulam Muhammad Khan & Co. Having its Office at 177, Block C, Unit No,6, Latifabad, Hyderabad--- Accused"
Final reference under section 18(g) read with section 24(b) of the National Accountability Bureau Ordinance, 1999.
' Respectfully sheweth,
(1) That on credible information received that a large scale Government properties or other properties owned/held by the cooperative banks under the control of Sindh Provincial Government were disposed of fraudulently and dishonestly by the then Chairman, Sindh Provincial Cooperative Bank Ltd. (namely Khawaja Haji Muhammad Jaffery now dead so his name is not shown in the list of accused) in connivance with the private parties in the building business as abettors/ associates.
(2) That, as such, investigation was authorized by the competent Authority under the NAB Ordinance, 1999 on 6-10-2001 and accused Nos.1, 2 and 3 were arrested to probe into such scam.
(3) That initially investigation opened in respect of award of contract of reconstruction on self- finance basis to Messrs Ghulam Muhammad Khan & Co. Registered partnership firm owned/ managed by accused Nos.1 and 2 through accused No,3, his front man/associate, by the Administrator of Sindh Provincial Cooperative Bank Limited, Karachi housed in old/dilapidated building on Plot No,21/3, Serai Quarter, Karachi having area of 1015 sq. Yards.
(4) That Sindh Provincial Cooperative Bank Limited, Karachi is a Cooperative Bank, registered under Cooperative Societies Act, 1916 (since repealed under Act, 1925) and its business is run/ managed by a 'Board' so constituted with the Registrar, Cooperative Societies as Chairman of Board and Khawaja Haji Muhammad Jaffery now dead was its Chairman in December, 1991.
(5) That in the month of May, 1991 bids for reconstruction of building were invited but no offer was received and thereafter in the month of December, 1991 all the above accused persons in collusion and connivance with each other arranged the award of contract without inviting fresh offers in favour of Messrs Ghulam Muhammad & Co., affirm but actually shared jointly by accused Nos.1 and 2.
(6) That per terms of approved contract, the building was to be completed within a specified time and entire mezzanine/1st Floor's reserved space was to be kept for the Bank and basement was to be left for car parking and the construction included shops/godowns on the ground floor and tenements on other floors, however, they all acted in violation of commitments made and deliberately failed to hand over mezzanine/1st floor space to the Bank.
(7) That all the accused persons to further achieve their illegal/dishonest motive and deprive the Bank of valuable rights/interest and to cause monetary loss, deliberately delayed construction and accommodation of Bank in agreed space in the buildings.
(8) That all the accused persons were known to each other and Khawaja Haji Muhammad Jaffery now dead to favour the accused persons, managed through conspiracy the sale of the said plot at throwaway price of Rs,1,39,00,000 in favour of Messrs Ghulam Muhammad Khan & Co. Through accused Abba Hussain now approver. The purported deal was in violation of law and the undertaking/commitments and at much below price than the market price, which, as calculated, was Rs, 3, 50, 00,000 and this resulted in gross loss to public exchequer and was a sheer act of misuse of authority and/or omission/failure to exercise the authority to prevent the grant/rendition of undue benefit/favour.
(9) That, Khawaja Haji Muhammad Jaffery (now dead) who was Registrar, Cooperative Societies under the Cooperative Societies Act, 1925 and, thus, by virtue of his office, Chairman of the 'Board' of Bank, as such, holder of public office, in collaboration with accused Nos.1 and 2 as well as accused No,3 who has since been granted pardon and cited as approver has been found to have misused his authority in the tainted deal and had failed to prevent the colossal loss and other accused have been found to have obtained illegal gain out of shady/tainted deal and, thus, their acts/omissions constituted offence of corruption and corrupt practice, as such, they are liable to be punishable under section 10 of the NAB Ordinance, 1999.
(10) That the list of the witnesses and list of documents and other materials collected during the investigation are enclosed.
' It is, therefore, prayed that this Honourable Court be pleased to take cognizance of the matter and of the offences committed by the accused persons and they may be punished in accordance with law."
3. On the basis of above reference and other material, the learned Judge, Accountability Court No,IV, Karachi framed charge against both the applicants as follows:-- "Charge ' I, Muhammad Jawaid Alam, the Judge, Accountability Court No,IV, Sindh, Karachi, do hereby charge you:--
(1) Muhammad Hanif son of Abdul Ghaffar.
(2) Muhammad Rafiq alias Rafiq Ahmed Qadir son of Abdul Qadir.
' That you accused Muhammad Rafiq being partner of Messrs Ghulam Muhammad Khan & Co., Hyderabad and you Muhammad Hanif partner of Messrs Ghulam Muhammad Khan & Co., Hyderabad, through your front man Abba Hussain in collaboration, collusion and connivance with late Khawaja Haji Muhammad Jaffery, Chairman, Sindh Provincial Cooperative Bank Limited with the common object and criminal intent by adopting corrupt means in December, 1991 obtained contract for construction of bank building situated at Plot No,21-SR-3, Serai Quarters, Karachi measuring 1015 square yards on self-refinance basis and entered into an agreement, dated 1-4- 1992 with the bank.
' And that you deliberately in order to achieve your ulterior motives did not fulfil the terms and conditions of the agreement and failed to hand over the possession of the building to the bank and subsequently in collusion, collaboration and connivance with late Khawaja Haji Muhammad Jaffery by abusing his official authority managed to purchase the said property in the name of your front man Abba Hussain for a low consideration of Rs,1,39,00,000 against its actual value of Rs,3,50,00,000 and thereby obtained illegal benefits and gains and caused wrongful loss to the exchequer, thereby committed the offence of corruption and corrupt practices as defined under section 9 of the National Accountability Bureau Ordinance, 1999 punishable under section 10 of the National Accountability Bureau Ordinance, 1999 within the cognizance of this Court.
' And I hereby direct that you both be tried by this Court on the aforesaid charges."
4. In support of the charge, the prosecution has examined P.W.1, Muzaffar Ali Zafar, Exh.8, P.W.2, Abdul Qadir Abbasi, Exh.9, P.W.3, Muhammad Yaqoob Sahto, Exh.10, P.W.4, Mazhar Ali Memon, Exh.11, P.W.5, Naseem Kazim, Exh.12, P.W.6, Ibne Masood, Exh.13, P.W.7, Abdul Muqeem, Exh.14, P.W.8, Saleh Saleem Memon, Exh.P.15, P. W.9, Ayaz Muhammad Khan, Exh.P.16, P.W.10, Faqir Muhammad, Exh.18, P.W.11, Moula Bux, Exh.19, P.W.12, Rehmatullah, Exh.20, P.W.13, Abba Hussain, Exh.21, P.W.14, Muhammad Yousuf Rajput, Exh.22, the Investigating Officer.
5. An application was submitted on behalf of applicant/accused Muhammad Hanif under section 265-K, Cr.P.C. Before the recording of evidence at trial praying for his acquittal, on the ground that there was no probability of his conviction.
6. It was contended before the learned trial Court that out of 16 prosecution witnesses examined under section 161, Cr.P.C., not a single witness has deposed against the applicant Muhammad Hanif, except the co-accused Abba Hussain, who turned approver. It was submitted that on the basis of statement of Abba Hussain approver/accomplice no conviction can be recorded against accused Muhammad Hanif. The prosecution took plea that the statement of approver supported with other evidence on record can provide basis for conviction.
7. The learned trial Judge rejected the application by order, dated 26-1-2002 for the reason that in the presence of statement of Abba Hussain, the approver/accomplice it cannot be said that there is no probability of conviction of the accused.
8. Application under section 265-K, Cr.P.C, on behalf of applicant Muhammad Rafiq was submitted on 29-3-2001 after examination of 11 prosecution witnesses.
9. It was contended in the application that the prosecution wishes to establish that the Khawaja Haji Muhammad Jaffery, the then Chairman of the Sindh Provincial Cooperative Bank Ltd. (who died on 5-2-1998) sold the building to accused Muhammad Rafiq at much lower rates than its market price by misuse of his authority. It was submitted that the sale of the building was recommended first by the members of the subcommittee and secondly by the entire board. The recommendation was unanimous and it was not the decision of late Khawaja Haji Muhammad Jaffery, Chairman of the Bank alone. The statement of approver was not reliable and there was no probability of the conviction of the accused for any offence whatsoever. On behalf of prosecution it was submitted that accused Muhammad Rafiq was one of the beneficiary and still there was sufficient evidence with the prosecution to connect accused Muhammad Rafiq with the offence and that the evidence of approver is to be evaluated in the light of other piece of evidence with the prosecution.
10. The learned trial Court observed that an accused can be acquitted under section 265-K, Cr.P.C.
If it can be shown that the evidence recorded and to be recorded shall not provide basis for conviction. He further observed that it is not the case of applicant/accused that even if entire evidence already recorded or to be recorded is presumed to be correct no case is made out against accused Muhammad Rafiq. He ultimately held that the evidence of approver is to be considered alongwith other prosecution evidence. The application was dismissed as premature.
11. Being aggrieved with the rejection of application under section 265-K, Cr.P.C. The two applicants have submitted these applications under section 561-A, Cr.P.C. Praying that the proceedings pending before the trial Court may be quashed.
12. We have heard learned Advocate for the parties. It is admitted position that the prosecution has examined all the witnesses and now the case is fixed for the defence of accused/applicants.
13. Mr. Khalid Anwar, has addressed elaborate arguments dealing with the entire case on merits and has called upon this Court to assess and evaluate the prosecution evidence brought on record for arriving at the conclusion, whether there is any probability of the conviction of the accused persons. He has submitted that notwithstanding, the fact that the entire prosecution evidence has been recorded and now the case before the trial Court is at the stage of defence, this Court should exercise jurisdiction under section 561-A, Cr.P.C. And quash the proceedings, as the main accused according to prosecution itself, namely Khawaja Haji Muhammad Jaffery, the then Chairman of the Sindh Provincial Cooperative Bank Ltd. Who is alleged to have caused loss to the Bank by misuse of authority, has died and no other member of the sub-committee which approved the contract, dated 31-12-1991 and the members of the Board which accepted recommendations of the sub-committee in its meeting dated 15-1-1992 has been sent up by the NAB for prosecution. The allegation against two applicants Muhammad Rafiq and Muhammad Hanif is of abetment. According to Mr. Khalid Anwar, the prosecution has no evidence whatsoever, on the point of abetment by the two applicants except a word from P.W.13, Abba Hussain, the approver/accomplice. He submitted that evidence of P.W. Abba Hussain cannot be relied upon. In view of the statement of Mr. Tariq Anwar learned D.G.P.A. Appearing for the NAB, that he will not place reliance on the confession of P.W. Abba Hussain, either as the confession or as a statement, we need not dilate on the point if the evidence of P.W. Abba Hussain is worth reliance or not.
14. The learned D.G.P.A. Mr. Tariq Anwar has stated that the prosecution case is that loss to the Bank was caused by late Khawaja Haji Muhammad Jaffery, by misuse of authority and the present applicants and Abba Hussain abetted in the commission of offence. He has referred to the evidence of P.Ws.7 and 8 namely Abdul Muqeem and Saleh Saleem Memon, on the point that the value of the property was much more than the price for which it was sold by late Khawaja Haji Muhammad Jaffery to the firm comprising the two applicants Muhammad Rafiq and Muhammad Hanif and Abba Hussain was their front man. However, he is not able to explain, that, after exclusion of the testimony of P.W. Abba Hussain, the alleged approver/accomplice, what other evidence is available on record on the point of abetment on the part of the two applicants. He has submitted that abetment is defined in section 107, P.P.C. For the sake of convenience section 107, P.P.C. Is reproduced below:-- "107 Abetment of a thing.--- A person abets the doing of a thing, who: First: Instigates any person to do that thing; or Secondly: Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly: Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1 .--- A person who, by wilful misrepresentation, or by wilful concealment of material fact which is bound to .Disclose, voluntarily causes or procures or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Illustration.--- A, a Public Officer, is authorized by a warrant from a Court of Justice to apprehend Z, B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C here B abets by instigation the apprehension of C.
Explanation 2 .--- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act."
15. Mr. Anwar Tariq, is, however, not able to show from the statement of any prosecution witness that the two applicants committed any act which may amount to instigate late Khawaja Haji Muhammad Jaffery or engage in any conspiracy with him or to do any act or omission which may constitute abetment, for misuse of authority by late Khawaja Haji Muhammad Jaffery.
16. Mr. Tariq Anwar, learned counsel for the State, has submitted that it is not a fit case for exercise of inherent jurisdiction by this Court under section 561-A, Cr.P.C: In support of his contention he has placed reliance on a Division Bench judgment of this Court comprising both of us, sitting in this Bench in the case of Yasin Siddiqui v. The State 2001 PCr.LJ 1331. He has particularly placed reliance on the following passage from our earlier judgment referred to above:-- "The inherent jurisdiction given by section 561-A, Cr.P.C. Is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court should be extremely reluctant to interfere in a case where a competent Court has after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence."
He has further referred to the following observations:-- "Section 561-A, Cr.P.C. Is not meant to stifle the prosecution but is intended to prevent the abuse of process of Court. The Court for quashing the proceedings has to consider the allegations made against the accused on their face value and if a prima facie ,case is made out, Court can refuse the prayer for quashment. High Court under section 561-A, Cr.P.C. Cannot assume the role of trial Court and evaluate the evidence present on record or yet to be recorded, to determine the guilt or innocence of an accused by way of a detailed enquiry. Accused may have a good defence but it has to pass the test of cross-examination and appreciation of defence evidence is also the duty of the trial Court in the light of the statutory provisions and the dictums laid down by the superior Courts. Powers under section 561-A, Cr.P.C. Are wide, but they are not supposed to be exercised to override the express provisions of law."
17. Mr. Khalid Anwar, learned counsel for the applicants has submitted that he has no cavil to the proposition laid down by this very bench in the case of Yasin Siddiqui v. The State (supra). He has, however, maintained that in the above judgment it has been held that the inherent jurisdiction under section 561-A, Cr.P.C., has been preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. He has further referred to the observations made by us in the judgment cited above that the inherent jurisdiction of the High Court under section 561-A, Cr.P.C. Has been preserved to secure the ends of justice when the proceedings if allowed to continue may defeat ends of justice and would amount to abuse of the process of Court. He has submitted that the learned trial Court has rejected the application under section 265-K, Cr.P.C. Mainly for the reason that there is evidence of approver/accomplice Abba Hussain against the two applicants. However, after the statement of learned D.P.G.A., that he will not place reliance either on the statement of Abba Hussain before Magistrate, either as a confession of accused or as a statement of witness, no evidence is left on record forming basis to establish the charge and the entire evidence on record is directed against the late Chairman of the Bank Khawaja Haji Muhammad Jaffery or against the other members of sub-committee and the Board who have been absolved by the NAB Authorities and the Investigation Agencies for the reasons best known to them. Mr. Khalid Anwar has submitted that in the wake of non-availability of any evidence on the point of abetment by the two applicants it would be an abuse of process of Court if the proceedings are allowed for a single day and would be sheer harassm ent to the applicants.
18. We have carefully considered the contentions raised by the learned Advocates for the parties and the material available on record. We, reiterate our opinion expressed in the case of Yasin Siddiqui v. The State (supra) that the inherent jurisdiction of High Court under section 561-A, Cr.P.C.
Is not an alternative forum and High Court cannot assume the role bf Trial Court for evaluating and assessing the evidence on record in the first instance. However, we further reiterate our view in the cited judgment, that, in exercise of inherent jurisdiction of High Court under section 561-A, Cr.P.C.
Proceedings shall be quashed to secure the ends of justice, if it is found that in case of continuance of the proceedings, it would defeat the ends of justice and would operative as an act of injustice.
Whenever, it is established that there is no evidence against an accused person warranting conviction for any offence and the trial Court fails to exercise the jurisdiction vested under section 265-K, Cr.P.C., it would be an appropriate case for this Court to interfere in exercise of inherent jurisdiction under section 561-A, Cr.P.C. To secure the ends of justice. Each case has to be examined on its own merits. If in a case where prosecution has examined all the witnesses and there is probability .Of conviction of accused, this Court will not interfere in exercise of its inherent jurisdiction and shall allow the Trial Court to assess and evaluate the evidence and exercise the jurisdiction vested in it. It may be reiterated that in case of availability of prima facie evidence, this Court will not stifle the normal course of proceedings and shall not usurp the jurisdiction vested in trial Court or pre-empt the finding of a Court of competent jurisdiction. However, it is established before us that after examining all the witnesses, the prosecution has failed to bring any evidence worth reliance on record and trial Court instead of exercising its jurisdiction under section 265-K, Cr.P.C. Which empowers the trial Court to acquit an accused at any stage of the case, fails to exercise its jurisdiction and insists for continuing the proceedings without any justification, this Court shall certainly interfere in exercise of jurisdiction under section 561-A, Cr.P.C. To prevent the abuse of the judicial process.
19. In the present case, we find that the only evidence available with the prosecution on the point of abetment was the testimony of alleged approver/accomplice Abba Hussain but he was granted pardon before recording of his alleged confession and the said confession was also exculpatory in nature with the result that the learned D.G.P.A. Had no option but to state that he would not place any reliance on the testimony of the so-called approver/accomplice. The result is that no evidence whatsoever, is left to implicate the present two applicants with abetment, for commission of offence by the main accused who has died. In the absence of any evidence on the point of abetment the continuance of criminal proceedings against the two applicants even for a single day would amount to harassm ent and abuse of the judicial process.
20. For the foregoing reasons, we are, of the considered opinion that it is a fit case in which this Court should interfere in exercise of its inherent jurisdiction under section 561-A, Cr.P.C. Both the applications are, therefore, allowed and the prosecution pending against them in Reference No,1 of 2002, in Accountability Court No,IV, Karachi is hereby quashed. Both the accused persons are acquitted accordingly.